I have written a book on the politics of autism policy. Building on this research, this blog offers insights, analysis, and facts about recent events. If you have advice, tips, or comments, please get in touch with me at jpitney@cmc.edu

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Friday, September 18, 2015

"Public Nuisance"

When neighbors complained about Vidyut Gopal and Parul Agrawal's young son with autism pulling children's hair, biting a woman and other menacing behavior, the couple said they did what they could to make it stop.

They hired caregivers, gave the boy special medication, and put him in therapeutic classes. But instead of bringing calm to Arlington Court, the Silicon Valley couple got slapped with a lawsuit that called their son a "public nuisance" -- and ultimately drove them out of their home of seven years.

Now, Gopal and Agrawal find themselves in the midst of a legal battle that has sparked outrage among parents of children with autism everywhere, and raised troubling questions about how to coexist with neighbors with special needs kids.

"This has been pretty devastating for us, but we are doing our best to cope with it," Gopal, an engineer at a Silicon Valley company, said Thursday.

The lawsuit -- filed last summer by two couples who lived in homes that flanked Gopal and Agrawal's house -- alleges that the boy's disruptive behavior also created an "as-yet unquantified chilling effect on the otherwise 'hot' local real estate market" and that "people feel constrained in the marketability of their homes as this issue remains unresolved and the nuisance remains unabated."

Just recently, to support their contention that the young boy’s autism behaviors constitute a “public nuisance” that must be “abated,” the Plaintiffs issued third-party subpoenas seeking his private disability-related information from a variety of sources including school district records, private therapy records, regional center files (from the San Andreas Regional Center, the agency charged with serving people with developmental disabilities in the county), and even records from a special-needs summer camp and a parent support group.

A hearing on Defendants’ motion to quash those highly invasive subpoenas is scheduled for September 22, 2015 at 9am. Details:

Case: Flowers v. Gopal, Santa Clara County Superior Court Case No. 114CV266515Hearing: Motion to quash third-party subpoenasDate: Tuesday, Sept 22, 2015Time: 9:00amLocation: Department 8, Santa Clara County Superior Court, 191 North First Street, San Jose, CA 95113Presiding Judge: Honorable Maureen A. Folan[Please note it is unclear when these motion will come up on the court’s calendar, it may not be heard until well after 9:00am.]

While a court hearing is obviously not an appropriate place to voice community concerns, community members are free to attend if they would like to learn more about this matter or simply lend moral support for the Defendant autism family.

This legal battle is occurring against the background of dramatically increasing autism cases in our state and within Santa Clara County as well. Santa Clara County in 1990 counted just 147 Department of Developmental Services-eligible autistic individuals, but today has more than 3,200. California cases of more severe forms of autism (DDS-eligible) has soared more than 25-fold since the 1980s, and now surpass 80,000 individuals. Autism is now found in all our neighborhoods. But if discriminatory lawsuits like this—where community members can sue autism families for autism-related behaviors (particularly where the $25k jurisdictional threshold is clearly not met)—proliferate, the result could be profound:

• Autism families could be driven to homelessness and bankruptcy while they defend themselves against such suits.

• Almost any person with autism who displays aberrant behaviors (and that’s most of the DDS autism population) could be declared a “public nuisance” based on neighbor complaints, and barred from living in the community.

• Autism families would lose their rights to privacy, as any community member who feels aggrieved by autism behaviors could seek the disabled child’s most personal and private medical, therapy, school and disability records.

• It could empower a new breed of “private prosecutors” against the developmentally disabled. In this case, before filing their Complaint, the Plaintiff neighbors had asked the local police and Child Protective Services to intervene against the autism family. Those authorities declined to take action against them, as they found nothing warranting such action.

• Lawsuits like this could essentially nullify California’s nascent efforts to foster increased community-based, integrated housing for the developmentally disabled, including those with autism. Federal policy requires that individuals with developmental disabilities have full access to the community and that communities may not discriminate against them; the California Government Code mandates that municipalities plan for inclusive community housing for citizens with developmental disabilities; and the state’s Lanterman Act provides that individuals with developmental disabilities have a right to live in the community like any non-disabled person. Facile lawsuits such as this, if allowed to stand, could easily kill efforts to create more autism and disability housing in our communities.

• If permanent injunctive relief such as that sought by the Plaintiffs is awarded, it could turn autism families into criminals for minor behaviors of their children. Court-ordered mandates prohibiting a broad array of child behaviors means autism parents and caregivers would live in constant fear that “one false move” by their significantly disabled charges could turn them, literally, into criminals subject to contempt of court punishments, including imprisonment.

Finally, we would like to commend the autism family targeted by this lawsuit. They have handled this attack with incredible strength as well as a sense of responsibility to the entire autism community, knowing what is at stake.